Congress Takes Vacation from Medical Privacy Bills

The Health Insurance Portability and Accountability Act (HIPPA) of 1996 (P.L. 104-191) called for protection of the privacy of medical information. The Republican controlled Senate Committee responsible for the legislation became deadlocked on whether workers' compensation records should be protected from non-disclosure. Since federal legislation was not enacted by August 21, 1999, the Secretary of Health and Human Services must promulgate regulations setting privacy standards by February 21, 2000. Federal medical record privacy is also driven by the European Community's 1998 mandate that foreign firms (ie. American) desiring to do business with their European counterparts must also have privacy laws enacted.

The insurance industry and employers do not want to have any restriction on the use or dissemination of employee medical records. A lucrative market exists for the sale of this information.

No Federal legislation exists for the global protection of medical information. The insurance industry has attempted to mold a Model Act for individual States to adopt so that, if and when there is Federal legislation or regulations, the State Acts would not be pre-empted. Several States have enacted or proposed their own Acts or regulations, without any universal consistency of approach. In the US Senate, three major bills have been introduced. The bills are now before the Senate Health, Education, Labor and Pensions Committee and a final version has yet to be released for mark up.

• Pending Federal Legislation

• Introduced

• Our Position

• S.573

  Medical Information Privacy and Security Act

• Sen. Leahy (D-Vt)

  Sen. Kennedy (D-Ma)

• SUPPORT: Insures privacy protection while allowing the idealistic goals of a uniform program

• S.578

  Health Care Personal Information Nondisclosure Act of 1999

• Sen. James Jeffords (R-Vt)

• OPPOSE: Pro-industry, requires mandatory release; denies access by individuals to their own records & psycho-therapist notes not exempted.

• S.881

  Medical Privacy Protection Act of 1999

• Sen. Robert E. Bennett

• OPPOSE: Pro-industry, Excludes workers' compensation insurance companies.

1. If you have a medical record, you shouldn't have a privacy problem. The Leahy/Kennedy proposal requires safeguards to ensure privacy of medical information and requires that individuals have prompt access to their own records and also have the opportunity to amend them.
2. Consent of the injured worker is required before disclosure and dissemination. It establishes a specific program on how healthcare providers must notify individuals of their rights and establishes rules to ensure individual consent.
3. Sensitive portions of medical records are protected. It limits disclosure of information and allows for segregation of particularly sensitive portions of the medical records, including psycho-therapists' notes, and retains State law when those restrictions are mandated.
4. The right to sue and collect damages under the civil justice system is preserved. Furthermore, it permits civil actions by individuals who have been knowingly or negligently violated under the terms of the Act.
5. Failure to disclose will not mean termination of health coverage. The Jeffords proposal, The Health Care Personal Information Non-Disclosure Act of 1999 (S.578), makes it mandatory for the participants of healthcare plans to provide authorization for release of their records to their insurance company. If the individual fails to execute the disclosure authorization, termination may result. It also allows healthcare providers to deny individuals access to their own records if the disclosure would cause "substantial mental harm."
6. The traditional right of confidentiality between a healthcare provider and a patient is maintained. The time-honored ethics of the medical profession also reflect this principal. The physicians' Oath of Hypocrites requires that medical information be maintained 'as sacred as secrets.' Patients will not be inhibited from seeking care and the potential for embarrassment and harassment is avoided.
7. Promotion or jobs will not be jeopardized by personal or family medical information. The diagnosis of a familial genetic disorder or disease could become a factor to be used by personnel departments in determining employment status or promotion if the Leahy/Kennedy bill is not approved.
8. Medical records will not fall into the hands of vendors who sell this information as a commodity on the open market. Medical records will not be indiscriminately made available as part of a financial credit history to be utilized in determining loan or mortgage credit viability.